Vicarious liability for rape: Barry Congregation of JWs

The background

In Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356, Mrs B and her husband had attended the Kingdom Hall in Barry and in 1986 Mrs B was baptised as a Jehovah’s Witness. They became friendly with another couple, Mark and Mary Sewell. Mark Sewell was a ministerial servant and subsequently became an elder. On 30 April 1990, Sewell raped Mrs B in a room in his house – and that fact was undisputed. In 2014,  Sewell was convicted of raping Mrs B and of indecently assaulting a girl aged under 14, CXC, and another individual and sentenced to 14 years’ imprisonment. Mrs B sued the Watch Tower Bible and Tract Society of Pennsylvania and the Trustees of the Barry Congregation and, at first instance, Chamberlain J held them vicariously liable for her rape. (He also determined that it was equitable to extend the time to allow the claims to proceed, pursuant to s.33 Limitation Act 1980). He awarded Mrs B £62,000 for psychiatric injuries attributable to the rape. On appeal, the defendants disputed

  • that the activities undertaken by Mark Sewell were an integral part of the “business” activities carried on by the defendants and that the commission of the rape was a risk created by the defendants assigning those activities to Mark Sewell; and
  • that the rape was sufficiently closely connected to Sewell’s position as an elder to justify the imposition of vicarious liability [2]

At the appeal hearing, the appellant sought the permission of the Court to add a further ground of appeal: that the judge had wrongly determined non-justiciable matters of religious dogma. Permission was refused [3].

The judgment

The Court considered the recent cases on vicarious liability: Maga v Archbishop of Birmingham & Anor [2010] 1 WLR 1441, Catholic Child Welfare Society & Ors v Various Claimants and the Institute of Brothers of the Christian Schools & Ors [2012] UKSC 56E v English Province of Our Lady of Charity [2013] QB 722, A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB), Cox v Ministry of Justice [2016] UKSC 10Various Claimants v Wm Morrison Supermarkets Plc [2020] UKSC 12 and Various Claimants v Barclays Bank Plc [2020] UKSC 13.

At first instance, the crucial finding had been that “But for Mark Sewell’s and Tony Sewell’s position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape.” It followed logically that had he not been an elder, Mark Sewell would not have raped Mrs B. Chamberlain J had found a strong causative link between Sewell’s status as an elder and the rape: “The findings were careful, logical, in accordance with the law and founded upon the evidence which he had heard” [69].

The test for vicarious liability as identified by Lord Phillips at [21] of Christian Brothers posed two questions:

(i) whether the relationship between the tortfeasor and the party said to be vicariously liable is one that is capable of giving rise to liability; and

(ii) whether there is a sufficiently close connection between the relationship between the tortfeasor and the party said to be vicariously liable and the act or omission of the tortfeasor [70].

As to (i), the Court accepted that Chamberlain J’s finding that an elder was as integral to the “business” of a congregation of Jehovah’s Witnesses as a priest is to the “business” of the Roman Catholic Church was based on the evidence before the court and was a reasonable conclusion to draw on the facts [77].

As to (ii) – whether the Barry Congregation had created the risk of rape when it made Mark Sewell an elder, the Court found as follows:

  • An organisation that gave its leaders power and authority over others created a risk that those leaders would abuse that power and authority: further, the teachings of the JWs gave elders considerable power and authority over others, who were enjoined to be obedient and submissive to them, at least when their guidance did not conflict with the Bible. 
  • The culture of the organisation imbued leaders with power and authority even outside the confines of their religious activities.
  • Sexual abuse could be a form of abuse of power and perpetrators might abuse their power or that of others to engineer a situation in which the abuse could occur – what Longmore LJ in Maga called the “progressive stages of intimacy”: “An organisation which confers on its leaders power over others creates the risk that they will abuse it in that way” [78].

At first instance, Chamberlain J had concluded that 

“(a) The fact that Mark Sewell held a position in the Congregation (initially, ministerial servant) was an important part of the reason why Mr and Mrs B started to associate with Mark and Mary Sewell.

(b) But for Mark Sewell’s and Tony Sewell’s position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape. There was, therefore, the ‘strong causative link’ referred to by Lord Phillips in the Catholic Child Welfare Society case at [86].

(c) The Defendants created or significantly enhanced the risk that Mark Sewell would sexually abuse Mrs B by creating the conditions in which the two might be alone together through (i) Tony Sewell’s implied instruction that she continue to act as his confidante (an instruction which carried the authority conferred by the Defendants because of his position as an elder) and (ii) investing Mark Sewell with the authority of an elder, thereby making it less likely that Mrs B (or others) would question his motives and emboldening him to think that he could act as he wished with little fear of adverse consequences” [88].

Nicola Davies LJ concluded that Chamberlain J’s three findings satisfied the test of close connection in respect of Sewell’s position as an elder: “his role and authority within the organisation and the power which it engendered [made] it just and reasonable for the defendants to be held vicariously liable for his act in raping Mrs B” [89].

Bean and Males LJJ concurred: appeal dismissed.

Cite this article as: Frank Cranmer, "Vicarious liability for rape: Barry Congregation of JWs" in Law & Religion UK, 24 March 2021, https://lawandreligionuk.com/2021/03/24/vicarious-liability-for-rape-barry-congregation-of-jws/

 

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